Cite as Century Arms, Inc., v. Kennedy, 323 F. Supp. 1002 (D. Vt. 1971)
Century Arms, Inc.
v.
David Kennedy, Secretary of the Treasury.
Civ. A. No. 5929.
United States District Court, D. Vermont.
Feb. 26, 1971
McNamara, Fitzpatrick & Sylvester, Burlington, Vt., and
Ginsburg, Feldman & Bress, Washington, D. C., for plaintiff.
Norman Cohen, Asst. U. S. Atty., George W. F. Cook, U. S
Atty., Rutland, Vt., for the Government.
OPINION and ORDER
OAKES, District Judge.
From a hearing on the Government's motion to dismiss, and
plaintiff's motion for summary judgment, it emerges that the facts
in this case are not substantially in dispute.
Plaintiff, Century Arms, Inc., is a Vermont corporation
engaged in the importation and sale of firearms for law enforcement
and sporting purposes. Between June of 1967 and August of 1968,
Century Arms negotiated contracts with police departments and
military branches of several foreign governments for the
importation of $343,192.04 of surplus military rifles suitable for
sporting purposes.
Between July of 1967 and September of 1968, Century applied to
the Office of Munitions Control of the State Department for
licenses to import the firearms, as required by regulations issued
under the Mutual Security Act of 1954 section 414, 22 U.S.C.
section 1934 (Supp. V, 1969) amending 22 U.S.C. section 1934
(1964). Between August 16, 1968, and October 8, 1968, valid
licenses were issued to Century, duly signed by authorized officers
of the Department of State. Although printed "Form DSP-38," on
which the licenses were issued, contains the statement "License
valid for six months from above date" [date of issuance], each of
the licenses granted to Century had stamped in bold letters across
its face "License Not Valid After December 15, 1968." This stamped
modification concededly superseded the six months' limit in the
printed form. December 15, 1968, was the day before the Omnibus
Crime Control and Safe Streets Act of June 19, 1968, Pub.L. No. 90-
351, section 907, 82 Stat. 197 (hereinafter called the Crime Con-
trol Act [footnote 1]), was to take effect.
Upon receipt of the licenses, and before their December 15
expiration, Century took steps to insure the arrival of the
firearms in this country. The first shipment reached the United
States on October 21, 1968. The last was here by December 6, 1968.
Thus the shipments were received in the United States before the
licenses had expired.
The shipments were not, however, received before Congress had
enacted the Gun Control Act of 1968, 18 U.S.C. sections 921-925
(Supp. V, 1969) [footnote 2], on October 22, 1968. Sections
922(t) and 925(d)(3) of the Gun Control Act prohibit the
importation of all surplus military firearms. Section 105(b) of
the Gun Control Act provided that section 922(t) and section 925(d)
(3), among others, were to take effect upon enactment, viz.,
October 22, 1968.
The genesis of this suit is the Secretary of the Treasury's
refusal, after October 22, 1968, to allow Century to "import" the
firearms covered by the licenses issued by the Office of Munitions
Control. "Importation" is used here in a narrow sense, as the guns
are physically in the United States, but are being held in bonded
warehouses pending the outcome of this suit. When we speak of the
Secretary's refusal to allow Century to "import" the guns, then, we
mean refusal to allow Century to remove the guns from the
warehouses and resell them to its customers.
Century contends that the Secretary of the Treasury
misconstrued the Gun Control Act, as that Act was never intended to
invalidate then-existing licenses. Furthermore, the argument runs,
if the Secretary's construction of the Gun Control Act is proper,
then that Act must be held unconstitutional in its application to
Century as in violation of the Due Process and/or Just Compensation
clauses of the Fifth Amendment. Century seeks declaratory relief
against the interpretation of the Gun Control Act given by the
Secretary, and relief in the nature of mandamus compelling the
Secretary to grant the necessary licenses to Century.
The Government, on the other hand, seeks dismissal of the suit
as an unconsented action against the sovereign, and for failure to
state a claim upon which relief can be granted. The Government's
argument in support of its motion to dismiss for lack of subject-
matter jurisdiction is twofold: first, that the Secretary's
interpretation of the Gun Control Act is correct, that the Sec-
retary is thus acting within the scope of his authority, and that
the suit therefore is, in reality, against the sovereign; second,
that the absence of constitutional infirmity in the Act itself
leaves this court without jurisdiction. The Government's motion to
dismiss for failure to state a claim upon which relief can be
granted is similarly premised on the Government's reading of the
Gun Control Act, which is consistent with the Secretary's reading
of the Act.
In opposition to the defendant's motion to dismiss for lack of
subject matter jurisdiction, the plaintiff relies on the line of
cases highlighted by Larson v. Domestic & Foreign Commerce Corp.,
337 U.S. 682, 689-690, 69 S.Ct. 1457, 03 L.Ed. 1628 (1949), which
holds that an action in the nature of mandamus will lie against an
officer of the federal government where (1) the officer acted
beyond the scope of his delegated authority, or ultra vires as is
sometimes said, or (2) the action of the federal official is
unconstitutional, whether or not permitted by the statute in
question. It is the plaintiff's contention that both of those
conditions are here met, and that 28 U.S.C. section 1361 (1964)
[footnote 3] therefore confers subject matter jurisdiction.
Whether or not one takes the view that 28 U.S.C. section 1361
merely enlarges the available venue in cases of so-called non-
statutory" judicial review but does not provide an independent
source of federal jurisdiction, we think the question of subject-
matter jurisdiction can be disposed of only after consideration of
the merits. See Land v. Dollar, 830 U.S. 731, 739, 67 S.Ct. 1009,
91 L.Ed. 1209 (1949).
The traditional rationale (here relied upon by the Government)
to divest the federal courts of subject matter jurisdiction in
actions where mandamus is sought against a government official has
rested on the argument that if the official act sought to be
compelled is ministerial only, mandamus will lie, but that if the
act involves official discretion, then the suit must be dismissed,
lest the federal courts begin directing an administrator in the
exercise of his constitutionally-delegated discretion. See Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 166, 2 L.Ed. 60 (1803). Larson,
supra, is of course the oft-cited authority for the proposition
that when an administrator acts within his allowable discretion, he
is in reality acting as the sovereign and is therefore not amenable
to suit. 337 U.S. at 688, 69 S.Ct. 1457. The logical corollary to
that proposition, as the Court went on to note in Larson, is that
when an administrator acts outside the scope of his delegated
authority, he is no longer performing the acts of the sovereign; he
can then be sued in an individual capacity. 337 U.S. at 689, 6?
S.Ct. 1457. And when the constitutionality of the administrative
action is challenged, suit may be brought, for even the acts of the
sovereign are circumscribed by the prohibitions of the
constitution. 337 U.S. at 690, 69 S.Ct. 1457.
While it may be well to say that there is no jurisdiction to
interfere with the lawful exercise of discretion, the basing of
jurisdiction on the "ministerial-discretionary" distinction leaves
the perimeters of administrative discretion undefined in the
particular cases. See, e. g., Byse & Fiocca, Section 1361 of the
Mandamus and Venue Act of 1962 and "Nonstatutory" Judicial Review
of Federal Administrative Action, 81 Harv.L. Rev. 308, 331-36
(1967); and Jaffe, Judicial Control of Administrative Action 572
(1965). To define the permissible limits of an administrators
discretion is a peculiarly judicial function. Safir v. Gibson, 417
F.2d 972 (2d Cir. 1969). Mr. Justice Frankfurter apparently saw it
as a necessary assumption of federal jurisdiction. In a vigorous
dissent to Larson, supra, he argued that
to decide whether the "authority is rightfully assumed is the
exercise of jurisdiction, and must lead to the decision of the
merits of the question." United States v. Lee, 106 U.S. 196,
219, 1 S.Ct. 240, 27 L.Ed. 171, 330 U. S. at 728, 69 S.Ct. at
1481 (dissenting opinion).
Furthermore, although neither party has raised the issue, it
is at least arguable that the statute in question, the Gun Control
Act of 1968, provides the plaintiff statutory judicial review.
Section 923(d) (2) of 18 U.S.C. provides for appeal to a federal
district court from the Secretary of the Treasury's denial of a
manufacturer's or importer's license under the Act, specifically
mentioning 28 U.S.C. section 1361. While Section 923(d)(2) was not
in effect at the time this controversy arose [Pub.L. No. 90-618,
section 105 (a)], the Act as a whole clearly contemplates judicial
review of the Secretary's decisions on license applications under
the new law. If an analysis of the merits were to find the
plaintiff bound by the provisions of the Gun Control Act as
interpreted by the Secretary of the Treasury, it would seem a harsh
result indeed to deny the plaintiff judicial review because section
923(d)(2) had not yet taken effect when the plaintiff was told it
could not import these guns. We are also aware that the grant of
judicial review of agency action under one section of a federal
regulatory scheme does not necessarily foreclose review of action
under other sections. See Abbott Laboratories v. Gardner, 387
U.S. 136, 140-141, 87 S.Ct. 1507, 19 L.Ed.2d 681 (1967).
Accordingly, we think, as did Mr. Justice Frankfurter, that
the jurisdictional issue necessitates a preliminary consideration
of the merits.
The question first to be decided, of course, is the proper
construction of the Gun Control Act of 1968. If the Secretary were
mistaken in his reading of the statute then the constitutional
issue would not be reached. The question cannot be decided without
close scrutiny of the particular provisions of the statute in
question here, an examination of the statutory scheme as a whole,
with particular attention to the interests it was designed to
protect or the evils it was designed to eliminate, and a look at
the history of the legislation. [footnote 4]
The Gun Control Act of 1968 grew out of and was enacted as a
series of amendments to the Omnibus Crime Control and Safe Streets
Act of 1968, Pub.L. No. 90-351. Title IV of the Crime Control Act-
State Firearms Control Assistance-was the first of two major at-
tempts by the Congress (the second being the Gun Control Act) to
assist the states in crime control through federal regulation of
the "widespread traffic in firearms moving in or otherwise affect-
ing interstate or foreign commerce * * *." Pub.L. No. 90-351
section 901(a)(1). Among the major changes to be effectuated in
the federal law by the Crime Control Act was a comprehensive scheme
of licensing procedures for firearms manufacturers, importers and
dealers, with administration and enforcement of the new provisions
vested in the Secretary of the Treasury. Pub.L. No. 90-351,
section 923.
Under federal law in effect prior to the Crime Control Act,
licenses issued pursuant to the Federal Firearms Act, 15 U.S.C.
sections 901-909 (1964), could be obtained from the Secretary of
the Treasury for $25 per year, and were a prerequisite to
transporting, receiving or shipping firearms in interstate or
foreign commerce. 15 U.S.C. sections 902, 903 (1964).
In addition, importers like Century were subject to the
provisions of the Mutual Security Act of 1954, 22 U.S.C. section
1934 (1964), and the regulations issued thereunder. Under the
terms of the Mutual Security Act, the President of the United
States is given the authority "to control, in furtherance of world
peace and the security and foreign policy of the United States, the
export and import of arms * * *." 22 U.S.C. section 1934(a)
(1964). Regulations issued under the Mutual Security Act required
importers of firearms to obtain a license for each shipment of
imported firearms from the Office of Munitions Control of the
Department of State, the President's delegate. The Office of
Munitions Control issued its licenses on the DSP-38 forms mentioned
above. The surplus military firearms in question could not legally
have been brought into the United States without such a license.
22 C.F.R. 121-27.
The proven ineffectiveness of existing licensing procedures
apparently prompted the enactment of Title IV of the Crime Control
Act, for
such firearms [other than rifles or shotguns] have been widely
sold by federally licensed importers and dealers to
emotionally immature, or thrill-bent juveniles and minors
prone to criminal behavior. Pub.L. No. 90-351, section
901(a)(6).
Further, the inadequacy of licensing fees under the Federal
Firearms Act and the application of improper standards to requests
for licenses bad "led to licenses being issued to persons not rea-
sonably entitled thereto, thus distorting the purposes of the
licensing system." Pub.L. No. 90-351, section 901(a) (9). Congress
had found that manufacturers' and dealers' licenses were being
issued much too cavalierly under the Federal Firearms Act, and
consequently set out more rigid standards for the grant of a li-
cense in Section 923 of the Crime Control Act.
Title IV of the Omnibus Crime Control Act specifically
exempted from the applicability of its provisions traffic in so-
called "long guns," that is, rifles and shotguns, or guns
particularly suitable for sporting purposes. The statute,
Pub.L. No. 90-351, provides, in relevant part, that
It shall be unlawful for any person knowingly to import or
bring into the United States * * * any firearm or ammunition,
except as provided in subsection (d) of section 925 of this
chapter * * *." section 922(j).
Section 925(d) provides that
The Secretary [of the Treasury) may authorize a firearm to be
imported or brought into the United States if the person
importing or bringing in the firearm establishes to the satis-
faction of the Secretary that the firearm-
(3) * * * is generally recognized as particularly suitable
for or readily adaptable to sporting purposes, and in the case
of surplus military firearms is a rifle or a shotgun * * *.
Section 907 of the Crime Control Act provided that
The amendments made by this title shall become effective one
hundred and eighty days after the date of its enactment;
except that repeal of the Federal Firearms Act shall not in
itself terminate any valid license issued pursuant to that Act
and any such license shall be deemed valid until it shall
expire according to its terms unless it be sooner revoked or
terminated pursuant to applicable provisions of law.
With respect to the importation of surplus military rifles and
shotguns, then, the Omnibus Crime Control Act would allow
essentially the same guns to be imported as the cumulative
provisions of the Federal Firearms Act and the Mutual Security Act
had; fees would be greater, however, and more stringent standards
of eligibility would apply, for an importer's license. A dealer
like Century would have to obtain a basic importer's license, and
then with each shipment of guns from abroad would have to establish
to the satisfaction of the Secretary of the Treasury that the guns
were suitable for sporting purposes, and in the case of surplus
military firearms from other countries, were not handguns. No
surplus military handguns at all were to be imported after the
Crime Control Act took effect, but the Secretary could approve the
importation of surplus military rifles and shotguns.
Although it is not entirely clear whether the authority of the
Office of Munitions Control to regulate the importation of firearms
was to cease on the effective date of the Crime Control Act, it
would be logical to infer that while the Secretary of the Treasury
was to have primary responsibility for the approval of imports, the
Office of Munitions Control would be able to issue cumulative
regulations when necessary to further "world peace and the security
and foreign policy of the United States." In fact, one of the
objections to the Crime Control Act raised by those members of the
Senate Judiciary Committee who dissented from the majority report
on Title IV was the overlap between proposed Title IV and the
existing regulations of the State Department. Expressing concern
over the possibility that enactment of Title IV would allow
interference with United States treaty obligations, the dissenters
voiced the fear that
* * * [i]mport restrictions considered by the committee would
require the Treasury Department to overlap a State Department
import licensing system authorized by section 414 of the
Mutual Security Act, as amended, which is working well and
makes full use of the overseas investigatory facilities of the
State Department. [Individual views of Messrs. Dirksen,
Hruska, Thurmond and Burdick on Title IV, S.Rep. No. 1097,
90th Cong., 2d Sess., reported at 1968 U.S.Code Cong. &
Admin.News pp. 2112, 2306.]
The Office of Munitions Control itself must have foreseen some
administrative difficulty or overlap between existing regulations
and the provisions of Title IV. As Century's licenses indicate,
that Office, after June 19, 1968, was stamping its licenses "Not
Valid After December 15, 1968."
The envisaged administrative overlap was, however, never to
materialize as anticipated, for the Crime Control Act had not yet
taken effect when Congress passed the Gun Control Act of 1968. The
Congressional web of gun regulation became more tangled.
Title IV of the Crime Control Act was aimed at the control of
interstate traffic in concealable firearms. Even before President
Johnson had signed it into law, however, work had begun in Congress
to extend the prohibitions of Title IV to cover rifles and
shotguns. Representative Celler had introduced H.R. 17735, in the
House on June 10, 1968, and Senator Dodd had filed a comparable
bill, S. 3633, on June 12, 1968. Both bills were in the form of
proposed amendments to the Crime Control Act. Several alterations
made in the bills before they were combined in conference committee
and enacted as the Gun Control law of 1968 need to be mentioned
here.
The Senate version of the proposed gun law, S. 3633, would
have had an effective date of December 16, 1968, to correspond with
the effective date of the Crime Control Act. Senator Dodd, how-
ever, subsequently urged an earlier effective date. On July 8,
1968, approximately three weeks after the Crime Control Act had
been signed and while S. 3633 was before the Senate Judiciary
Committee, of which Senator Dodd was a member, he told the Senate
that
* * * Title IV [of the Omnibus Bill] has, as it were spurred
on the importers to cash in on a 6-month effective date on
those import controls. It appears that they intend to import
just as many firearms as possible before December 15, 1968,
the effective date of Title IV of the crime bill. It was
certainly never my intention to create such a situation. I do
not believe it was the intent of Congress either * * * I will
therefore introduce an amendment at this time to Title IV of
the omnibus crime bill to make immediate the effective date of
that act. * * * We did not pass the Omnibus Crime Control
Act to give these gunrunners 6 months to flood the nation with
foreign-made and military surplus firearms and to put more
guns into the hands of criminals. 114 Cong.Rec. 20128-29
(1968).
When the proposed Gun Control law was reported by the Senate
Judiciary Committee on September 6, 1968 (S.Rep. No. 1501, 90th
Cong., 2d Sess.), the effective date of the provisions covering the
importation of long guns and ammunition was August 1, 1968. The
effective date for the rest of the bill was December 16, 1968.
In the meantime, a major change had been made in the proposed
gun laws by the House of Representatives. H.R. 17735, as reported
by the House Judiciary Committee, would have permitted the
Secretary of the Treasury to permit the importation of surplus
military rifles and shotguns suitable for sporting purposes.
H.R.Rep. No. 1577, 90th Cong., 2d Sess. (June 21, 1968). On July
23, 1968, however, Representative Horton introduced an amendment to
H. R. 17735 to prohibit the importation of all surplus military
firearms, as an aid to federal control over the interstate shipment
and mail order purchase of rifles and shotguns. Representative
Horton told the House that
long gun imports during the month of May alone were worth
$388,000. I do not have to remind any member Of this body
that the late President Kennedy was killed with a $14 Italian
military rifle. H.R. 17735 would effectively prevent the mail
order of such a gun. Why should we not take the further step
of preventing its importation? 114 Cong.Rec. 22779 (1968).
The Horton amendment was incorporated into H.R. 17735, which
passed the House on July 24, 1968.
The House and Senate bills were subsequently submitted to a
Conference Committee which reported favorably on H.R. 17735, with
some modifications adopted from the Senate version of the
enactment. Conference Rep. No. 1956, 90th Cong., 2d Sess. (October
9, 1968). The Horton amendment survived intact the revisions made
by the Committee on Conference. The Committee did not, however,
adopt the effective date of 180 days after enactment suggested by
the House of Representatives. Instead, the Committee took from the
Senate version an overall effective date of December 16, 1968, to
correspond with the effective date of the Crime Control Act, and
provided that the provisions relating to the Importation of
firearms and ammunition would take effect on the date of enactment.
As amended in Conference, then, the Gun Control Act of 1968 was
passed on October 22, 1968. On October 24, 1968, President Johnson
issued Executive Order No. 11432, Section 2 of that order reads:
All regulations issued and presently in effect pursuant to
Section 414 of the Mutual Security Act of 1954, as amended,
shall, insofar as they relate to control of the import of
arms, ammunition and implements of war continue in effect and
be administered by the Secretary of the Treasury until revoked
or superseded by him. All pending applications for import
licenses not acted upon by the Secretary of State at the date
of this order shall be transferred to the Secretary of the
Treasury for appropriate action. Exec. Order No. 11432, 33
F.R. 15701, 22 U.S.C.A. section 1934 note (1968).
The amendments to the Crime Control Act effectuated by the Gun
Control Act which bear on the present dispute are several. Section
922(j) of the Crime Control Act was amended to deal with the
transportation of stolen firearms. New section 922(t) of the Gun
Control Act is essentially the same as 922(i) of the Crime Control
Act. Section 922(l) provides that
Except as provided in section 925(d) of this chapter, it shall
be unlawful for any person knowingly to import or bring into
the United States or any possession thereof any firearm or am-
munition * * *.
Section 925 was amended to read:
(d) The Secretary [of the Treasury] may authorize a firearm
* * * to be imported * * * if the person importing or bringing
in the firearm * * * establishes to the satisfaction of the
Secretary that the firearm * * *
(3) is * * * generally recognized as particularly suitable for
or readily adaptable to sporting purposes, excluding surplus
military firearms.
And finally, the amendment to Pub.L.No. 90-351, section 105, which
gives rise to this controversy, reads:
(b) The following sections of chapter 44 of title 18, United
States Code, as amended by section 102 of this title shall
take effect on the date of the enactment of this title:
Sections 921, 922(t), 925(a) (1), and 925(d). Pub.L.No. 90-
618, section 105(b).
Thus, the Secretary of the Treasury never received the authority
given him in the Crime Control Act to issue licenses for the
importation of surplus military shotguns and rifles. The Gun Con-
trol Act amended it away before the Crime Control Act took effect.
The narrow question remains, however, whether the purpose of
Congress, as that purpose is expressed in the terms of the Gun
Control Act, was to put an immediate stop to the bringing into this
country, or importation, of all surplus military firearms, or
whether the purpose was to put an immediate stop to the issuance of
licenses, leaving existing licenses to expire by their own terms.
Century Arms urges reading the word "authorize" in section
926(d) as a term of art, connoting the issuance of a license only.
It is Century's argument that the immediate effective date of cer-
tain sections of the statute affected only the Secretary's power to
issue licenses in the future, and left untouched his obligation to
honor existing licenses. Construction of the statute in this
fashion, however, would result in an anomalous state of affairs.
Prior to December 16, 1968, the Secretary of the Treasury had no
authority either to grant or deny a license to import surplus
military long guns or hands guns (except, of course, his authority
under the Federal Firearms Act to grant a manufacturer's license on
payment of the statutory fee). The import licensing authority, as
previously stated, was vested in the Office of Munitions Control
under section 414 of the Mutual Security Act of 1954 and the
regulations issued thereunder. If that authority were not vested
in the Secretary, it would seem odd if Congress were to try to take
it away from him. Nor does it seem likely that Congress, by the
passage of section 105(b) (making section 925(d) effective upon
enactment) intended to give the Secretary control over the issuance
of licenses only for the additional period between October 22 and
December 16 for the importation of guns adaptable for sporting
purposes, including all surplus military long guns, while in the
same breath any authority to issue licenses for the importation of
any surplus military firearms was taken away. Such a construction
would allow the Secretary to issue licenses between October 22 and
December 16 for guns, other than surplus military firearms,
particularly suitable or readily adaptable for sporting purposes.
As the Secretary was to have that particular authority after
December 16 in any event, along with his other duties, and as guns
of that sort would still be importable after the effective date of
the Crime Control Act, the Court cannot really believe that
Congress intended such a strained construction of the Act, designed
only to result in administrative confusion.
Furthermore, if Congress had wished only to stop the issuance
of licenses for the importation of surplus military firearms
between October 22 and December 16, rather than the importation
itself, it might have left section 922(t), which makes it illegal
to import firearms without the Secretary's approval, to take effect
with the rest of the Act on December 16. But Pub.L. No. 90-618,
section 105(b), makes section 922(i), as well as section 925(d),
effective immediately. Century's argument loses force when the
provisions of the statute are read together. Section 922(l), which
must be the starting point, effects an immediate ban on the
importation or bringing into the country of all firearms. It says
nothing about "authorizing" imports. Section 925-Relief from
Disabilities-goes on to allow the Secretary to authorize an
exemption for certain classes of imports. Century is, in effect,
urging upon this Court a semantic distinction in which we are
unwilling to indulge. We do not see the Secretary as assuming
retroactive authority and revoking existing licenses, but rather as
refusing to grant an exemption, which he had no authority to grant,
to an existing prohibitions course of action which concededly
entailed a collateral effect on existing licenses.
The explanation by the managers on the part of the House of
Representatives accompanying the Gun Control Act as amended by the
Committee on Conference supports the view that a prohibition on
imports, not just authorizations, was to take effect immediately.
The Conference Report explains:
Import controls. The House bill banned importation of all
surplus military firearms, while the Senate version permitted
importation of military surplus, rifles, and shotguns suitable
for or readily adaptable to sporting purposes. The conference
substitute contains the provision in the House bill.
Effective Date. * * * The conference substitute conforms to
the Senate amendment except that it provides that the
restriction on imports of firearms and ammunition shall take
effect on the date of the enactment of the bill. Conference
Rep. No. 1956, 90th Cong., 2d Sess., reported at 114 Cong.
Rec. 30568 at 30577 (1968).
Thus, even reading the word "authorize" in Section 925(d) as a term
of art meaning to issue a license, does not help Century, for
section 922(l) makes the importation of surplus military firearms
illegal, and section 105(b) makes section 922(l) effective
immediately.
Century relies heavily on Exec. Order No. 11432, supra, of
October 24, 1968. Although an executive order is not binding upon
a court as a matter of statutory construction, the President's
reading of a particular statute may, of course, be helpful.
Century points out that the President referred only to the transfer
of "pending applications," and not to valid pre-existing licenses.
The Order may be read, however, as complementary to a
construction of the statute which would effect an immediate ban on
the importation of all surplus military firearms. Although the
phrase pending applications" might be read in isolation as
excluding validly issued, outstanding licenses, when read with the
rest of the Executive Order it appears to assume another meaning.
Section 1 of the Order provides
There are hereby delegated to the Secretary of the Treasury:
* * * * * * *
(b) So much of the functions conferred upon the President by
Section 414 of the Mutual Security Act of 1954, as amended, as
relate to control of the import of arms, ammunition and
implements of war * * *.
Exec. Order No. 11432, supra.
Section 1 of the Order purports to transfer to the Secretary of the
Treasury all of the President's functions pertaining to control of
the import of firearms. The Order appears to be designed primarily
to eliminate the overlapping of functions of the Office of
Munitions Control and the Secretary of the Treasury, and to make it
clear that an importer would not have to obtain two licenses for
each shipment. The transfer of "pending applications" thus can be
read as a measure of administrative convenience to insure that the
State Department's power to act on licenses would cease at once,
but to relieve those applicants who had already filled out the
necessary forms from the burden of duplicating their efforts.
There is no indication that every pending application would have to
be denied under the new law.
Much is made of the President's omission of any reference to
existing licenses. But Congress's omission of any reference to
existing licenses is more telling than the President's. Although
the Crime Control Act repealed the Federal Firearms Act, Congress
expressly stated that the repeal was not intended to invalidate
existing licenses under the Federal Firearms Act; rather, those
licenses were to continue in effect until they expired by their own
terms. Pub-L. No. 90-351 section 907. But any such express
continuation of existing licenses was conspicuously left out of the
Gun Control Act. It would seem to follow that, had Congress
designed the Gun Control Act with an eye to leaving existing li-
censes to expire by their own terms, it might easily have said so.
This discussion of the Gun Control Act of 1968 has thus far
centered on a quite literal reading of the words of the statute.
Keeping in mind Judge Learned Hand's further admonition that
statutes "should be construed, not as theorems of Euclid, but with
some imagination of the purposes which lie behind them," [footnote
5] we turn to an examination of the evils this statute was designed
to eliminate, or the ends it was designed to serve.
Century's argument that the purpose of the 180-day period
between the signing of the Safe Streets Act and the effective date
of that act was to give "dealers six months to conclude contract
negotiations for the purchase of handguns" and that "in reliance on
this guns, transitional phase, plaintiff and other dealers were
encouraged to continue with their purchases and apply for licenses"
does not sit well. The clear implication of the enactment of an
immediate effective date for Sections 922(l) and 925(d) of the Gun
Control Act, particularly in light of Senator Dodd's remarks, is
that the Congress had never intended that the passage of strong
controls over the import of firearms be preceded by a "grace
period" during which gun importers could stockpile enough firearms
to emasculate the new law for several years to come.
Be that as it may, there is no necessity to decide, as
plaintiff would have it, whether "[i]n providing this six month
period Congress acted to avoid severe financial injury to
commercial dealers." The proper matter of concern is with the
foreshortening of the six-month period effected by the Gun Control
Act. The question is whether the purposes of that legislation are
served or defeated by a holding that a ban on the importation of
all surplus military firearms was to take immediate effect.
While it may be, as plaintiff argues, that the "principal
purpose of the Gun Control Act of 1968 was to control and
reduce traffic in firearms because of our domestic war on crime,"
we are not persuaded that "[t]hat purpose is not achieved by
holding plaintiff's licenses invalid," or that "[t]he impact of
shotguns and rifles here involved would be insignificant."
Repeated reference to the "urgent necessity for adding restrictions
on transactions in long guns" (H. R. Rep. No. 1577, 90th Cong., 2d
Sess. (1968), U.S.Code Cong, & Admin.News 1968, p. 4413) and the
House Judiciary Committee's statement that
[T]he main purpose of the import restrictions is to arrest the
present flood of imports of surplus military weapons and low-
priced foreign-made firearms generally, since these types of
important weapons have caused major law enforcement problems.
H.R. Rep. No. 1577, U.S.Code Cong. & Admin.News 1968, p. 4415
(emphasis added).
lead to the conclusion that the impact of $343,192.04 worth of
surplus military rifles and shotguns may not be considered
"insignificant." Only $389,000 worth of long gun imports during
the month of May apparently provided the impetus for the Horton
Amendment in the first place. 114 Cong.Rec. 22779 (1968). See also
President Johnson's Message to the Congress on Gun Control Laws ("I
urge the Congress * * * to act immediately to control interstate
sales of shotguns, rifles and ammunition") [U.S. Code Cong. &
Adm.News 1865 (1968)]; Representative Celler on the necessity for
speed in the enactment of laws controlling long gun imports, 114
Cong.Rec. 23073 (1968) ; Representative Schwengel on the rapid rate
at which imports of firearms were rising in the first months of
1968, 114 Cong.Rec. 21811 (1968) ; Senator Fong on the desirability
of "immediate enactment" of restrictions on long guns, 114
Cong.Rec. 27135 (1968); Senator Dominick on eliminating "lag time
while enforcement procedures are created," 114 Cong.Rec. 27142
(1968). Apparently, too, the impact of two more months of
importation of firearms was found to be more significant than two
more months of receipt of firearms in interstate commerce by
convicted felons, narcotics addicts or mental defectives, as
Section 922(g) was not to take effect until December 16, 1968.
It is also of interest to note that import restrictions have
in other circumstances been presumed to include goods en route in
the absence of express exemption. C. Tennant, Sons & Co. of N. Y.
v. Dill, 158 F.Supp. 63, 68 (S.D.N.Y. 1957) (monthly quotas on
importation of tung oil).
Finally, Century urges that the purposes of the gun law would
not be served, and crime would not be reduced, by exclusion of
these imports, because the late Dr. Martin Luther King, Jr., was
killed with a domestic rifle, the late Robert F. Kennedy was slain
with a hand gun, and the $14 Italian surplus military rifle which
killed President Kennedy could still be imported into the United
States if it came from a source other than the military.
Expressing no view on the wisdom of the selective import
restrictions chosen by Congress, this particular argument is
disingenuous at best. Congress need not find airtight solutions to
every evil against which it attempts to legislate.
To have declared that the best means shall not be used, but
those alone without which the power given would be nugatory,
would have been to deprive the legislature of the capacity to
avail itself of experience, to exercise its reason, and to
accommodate its legislation to circumstances. McCulloch v.
Maryland, 17 U.S. (4 Wheat.) 316, 415, 4 L.Ed. 579 (1819).
See also Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S.Ct.
1717, 16 L.Ed.2d 828 (1966).
As the Secretary of the Treasury's interpretation of the Gun
Control Act of 1968 is held consistent with the purposes of
Congress, we are confronted with the claim that the Act as so
construed and applied is violative of Century's rights under the
Due Process and/or Just Compensation clauses of the Fifth
Amendment, and the request that a three-judge district court be
convened accordingly to adjudicate that claim. This point is made
although Century itself stated, in support of its argument on
construction of the statute, that "It cannot be gainsaid that had
Congress intended to prohibit absolutely the importation of surplus
military firearms into the United States, it could have done so."
(Pl's Mem. on Motion for Summary Judgment, p. 7.)
The first inquiry, of course, must be directed to the
appropriateness of convening a three-judge court under 28 U.S.C.
section 2282 (1964). A three-judge court is not to be convened
when the constitutional issue alleged is insubstantial or
frivolous; and the initial determination of the substantiality of
a constitutional claim is to be made by a single district judge.
California Water Service Co. v. City of Redding, 304 U.S. 252, 254,
58 S.Ct. 865, 82 L.Ed. 1323 (1938). The Supreme Court has stated
that
[t]he lack of substantiality in a federal question may appear
either because it is obviously without merit or because its
unsoundness so clearly results from the previous decisions of
this court as to foreclose the subject. California Water
Service Co., supra, at 255, 58 S.Ct. at 867.
As Judge Friendly has pointed out, however, "[i]n the nature of
things, these tests cannot be of mathematical precision." Green v.
Board of Elections, 380 F.2d 445, 448 (2d Cir. 1967).
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824), is
formidable precedent for the proposition that the commerce power
like all others vested in congress, is complete in itself, may
be exercised to its utmost extent, and acknowledges no
limitations, other than those prescribed in the constitution.
22 U.S. at 196.
And in United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed.
609 (1941), Mr. Justice Stone, speaking for the entire Court,
stated
In the more than a century which has elapsed since the
decision of Gibbons v. Ogden, these principles of con-
stitutional interpretation have been so long and repeatedly
recognized by this Court as applicable to the Commerce Clause,
that there would be little occasion for repeating them now
were it not for the decision of this Court twenty-two years
ago in Hammer v. Dagenhart, 247 U.S. 251, 38 S.Ct. 529, 62
L.Ed. 1101, 312 U.S. at 115, 61 S. Ct. 451, 458.
As Darby expressly overruled Hammer v. Dagenhart, there is little
occasion now for repeating Chief Justice Marshall's view that the
commerce power is plenary, subject only to express constitutional
limitations. Thus, if the plaintiff here had made no showing of
reliance on its pre-enactment import licenses, its claim
of unconstitutionality would clearly be frivolous. See Weber v.
Freed, 239 U.S. 325, 329, 36 S.Ct. 131, 132, 60 L.Ed. 308 (1915)
(contentions that Congress had no power to prohibit the importation
of films of pugilistic encounters "so devoid of merit as to cause
them to be frivolous"); and Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,
191, 6 L.Ed. 23 (1824) (on "the universally acknowledged power of
the government to impose embargoes"). [footnote 6]
The difficulty here, then, is with the contracts entered into
by Century prior to the enactment of the Gun Control Act of 1968,
and the licenses which had given official recognition to the le-
gality of those contracts when entered into. In this Court's view,
this difficulty is not one which necessitates determination by a
three-judge court.
The clause of the Constitution which prohibits impairment of
the obligations of contracts applies, by its terms, only to the
States, and not to the federal government. U.S. Const. art. I,
section 10. But the prohibitions of the Fifth Amendment, on which
Century relies, do of course circumscribe to some extent the
legislative powers of the Congress. United States v. Darby, supra.
In the past it has been said that that which is merely a
"privilege" may be taken away at the whim of the legislature, but
that the denial of a "right" must be accompanied by due process of
law. See, e. g., Stone v. Mississippi, 101 U.S. 814, 821, 25 L.Ed.
1079 (1879); Mugler v. Kansas, 123 U.S. 623, 662, 8 S.Ct. 273, 31
L.Ed. 205 (1887). The "right-privilege" distinction has justly
been discredited, Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct.
1790, 10 L.Ed 2d 965 (1963); Flemming v. Nestor, 363 U.S. 603,
611, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960); see Van Alstyne, The
Demise of the Right Privilege Distinction in Constitutional Law,
81 Harv.L.Rev. 1439 (1968); 2 Schwartz, A Commentary on the
Constitution of the United States, p. 874 et seq. (MacMillan 1968).
Century's licenses were valuable to it, and the Secretary's
refusal to allow Century to import its guns represents a con-
siderable financial loss, whether the opportunity to import
firearms is regarded as a "right" or a "privileges" for it is
suggested that if the guns cannot be imported into this country
they cannot be sold anywhere. Century's property is at stake here,
and that property cannot be taken from Century without due process
of law, nor appropriated for public benefit without just
compensation. But has either constitutional provision been tres-
passed?
If Century's claim is that the mere enactment of an absolute
prohibition on the importation of surplus military firearms, when
such had been permitted in the past, is violative of due process of
law, we might respectfully point out that former laissez-faire con-
cepts of substantive or economic due process have gone the way of
the "right-privilege" distinction. See Bodenheimer, Due Process of
Law and Justice in Essays in Jurisprudence in Honor of Roscoe
Pound, pp. 463, 489 (Bobbs-Merrill 1962); Frankfurter, The
Constitutional Opinions of Mr. Justice Holmes in Felix Frankfurter
on the Supreme Court (Kneeland ed. 1970), pp. 32-37. In Nebbia v.
New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934), which
still sets forth the basic criteria followed today, [footnote 7]
the Supreme Court stated that
[t]he Fifth Amendment, in the field of federal activity, and
the Fourteenth, as respects state action, do not prohibit
governmental regulation for the public welfare. They merely
condition the exertion of the admitted power, by securing that
the end shall be accomplished by methods consistent with due
process. And the guaranty of due process, as has often been
held, demands only that the law shall not be unreasonable,
arbitrary, or capricious, and that the means selected shall
have a real and substantial relation to the object sought to
be attained. 291 U.S. at 525, 54 S.Ct. at 510 (footnotes
omitted).
Can it be said that it was unreasonable, arbitrary or capricious as
a matter of law for Congress to find that the importation of
shotguns and rifles, and more specifically surplus military
firearms, created a major impediment to local law enforcement
efforts, or that delay in the enactment of strong gun control laws
would only increase the magnitude of the problem? Allowing room for
the differing opinions of Senators Dirksen, Hruska, Thurmond and
Burdick [S.Rep. No. 1097, 90th Cong., 2d Sess. (1968)], it can
hardly be held as a matter of law that sections 922(l) and 925(d)
(3) represented a capricious assimilation of the collective
American experience over the decade which preceded their enactment.
Statistics on crimes of violence committed with shotguns and rifles
permeate the legislative history of the Gun Control law (e. g.,
H.R.Rep. No. 1577, General Statement, 90th Cong., 2d Sess., 1968).
The relatively low cost of surplus military firearms affords a
rational basis for the belief that their importation should be
prohibited (id.); Representative Schwengel's statistics on the
value of firearms imported monthly, 114 Cong.Rec. 23073 (1968),
could persuade a reasonable man to eschew delay. As far as Century
relies on a theory of substantive due process, then, we see no
merit in the claim. [footnote 8] Or, to paraphrase Mr. Justice
Douglas, we have no desire to see the spectre of Lochner stalk
again. F.H.A. v. Darlington, Inc., 358 U.S. 84, 92, 79 S.Ct. 141,
3 L.Ed.2d 132 (1958).
If Century's claim be one of denial of procedural due process,
it strikes us as equally without merit. Due process need not be
judicial process. See Mr. Justice Brandeis concurring in St.
Joseph Stock Yards Co. v. United States, 298 U.S. 38, 77, 56 S.Ct.
720, 80 L.Ed. 1033 (1936); Murrah, C. J. in Garvey v. Freeman, 397
F.2d 600, 612 (10th Cir. 1968). [footnote 9]
When Congress, as here has, as repeatedly pointed out above,
made reasonable findings of fact and embodied them in a reasonably
related piece of legislation, its decisions are to be given special
deference. Nebbia v. New York, 291 U.S. 502, 525, 54 S.Ct. 505
(1934). This is not a case in which an administrative agency,
entrusted with the application of general statutory standards to
particular factual situations revokes without notice or hearing, or
without any explanation of the factual bases of its decision, a
license or benefit previously enjoyed by the complaining party.
See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287
(1970). It is, rather, a case in which the facts have been found
by Congress, and the standard embodied in the statute leaves no
room for administrative discretion. We have difficulty, then,
seeing the analogy the plaintiff urges with such cases as Noble v.
Union River Logging Co., 147 U.S. 165, 13 S.Ct. 271, 37 L.Ed. 123
(1893), in which it was held that the Secretary of the Interior
could not rescind a right of way granted by his predecessor in
office except through proceedings in a court of law. 147 U.S. at
176, 13 S.Ct. 271.
In a multitude of areas of commercial life in which the
Congress has sought to regulate the affairs of men, a licensing
system is a fundamental and familiar starting point for a
comprehensive regulatory scheme. Licenses are required to transmit
radio waves under the Federal Communications Act of 1934, 47 U.S.C.
section 307 (19@4), to operate an airline under the Federal
Aviation Act, 49 U.S.C. section 1371(a) (1964), and so on. Under
state laws, we need licenses to drive cars, 23 V.S.A. section 601
(1949); to sell liquor, 7
V.S.A. section 221 et seq. (1955); and to engage in some of the
oldest professions, 26 V.S.A. section 913 (1969) (embalming); 26
V.S.A. section 264 (barbers). Yet we are aware of no licenses
which once granted, can never be taken away. As an example only,
the Federal Communications Act establishes standards for the ap-
proval of a license application by the Commission and provides for
the revocation of a license when a licensee fails to meet the
standards of performance required by the Act. A license to operate
a radio or television station in a large city can be a valuable
commodity. But if the holder of the license engages in activities
inimical to the public convenience and necessity, his license may
be taken away. See Red Lion Broadcasting Co., Inc., v. F.C.C., 395
U.S. 367, 389, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969).
It is axiomatic that if Congress can delineate general
standards for the grant or denial of a license under a federal
regulatory scheme, and permit a commission to find facts and apply
the law to those facts, Congress itself can determine the facts,
and can write more stringent standards into a regulatory scheme.
That Congress wished to divest the Secretary of discretion under
the Gun Control Act is plainly evident from the remarks of both the
Act's supporters and its detractors. Representative Horton, 114
Cong-Rec. 22780 (1968); Representative Dingell, 114 Cong.Rec. 22779
(1968); Senator Hruska, 114 Cong.Rec. 27123 (1968). Thus we find
insubstantial plaintiff's argument that once the federal government
issues a license, and the license is relied upon, the license can
never be revoked consistent with due process of law, until it
should expire by its own terms.
The plaintiff argues, apparently in the alternative, that,
because it cannot sell its guns anywhere but in the United States,
the Secretary's refusal to permit the importation of these guns
amounts to appropriation of its property without just compensation.
Accepting the premise that it cannot sell its guns elsewhere as
true, even if it could successfully be argued that the Secretary's
action (or the action of Congress) amounts to a taking for "public
use," U.S.Const. Amend. V, the eminent domain argument has been so
conclusively rejected by the Supreme Court as to obviate the need
for a three-judge court. A diminution in the value of private
property incidentally occasioned by the enactment of a federal
statute does not amount to a taking of that property requiring
monetary compensation. Heart of Atlanta Motel, Inc. v. United
States, 379 U.S. 241, 260-261, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964);
and cf. Jimmie's Incorporated v. City of West Haven, 436 F.2d 1339
(2d Cir. 1971).
In the Legal Tender Cases, 12 Wall. 457, 79 U.S. 457, 20 L.Ed.
287, decided in 1870, the Supreme Court observed that
As in a state of civil society property of a citizen or
subject is ownership, subject to the lawful demands of the
sovereign, so contracts must be understood as made in
reference to the possible exercise of the rightful authority
of the government, and no obligation of a contract can extend
to the defeat of legitimate government authority. 79 U.S. 457,
551 (1870).
The Court went on to point out that
A new tariff, an embargo, a draft, or a war may inevitably
bring upon individuals great losses; may indeed, render
valuable property almost valueless. They may destroy the
worth of contracts. But whoever supposed that, because of
this, a tariff could not be changed, or a non-intercourse act,
or an embargo be enacted, or a war be declared? 79 U.S. at
551.
In Louisville & Nashville R.R. v. Mottley, 219 U.S. 467, 31 S.Ct.
265, 55 L.Ed. 297 (1911), the Supreme Court, relying on Knox v.
Lee, 79 U.S. (12 Wall.) 457, 20 L.Ed. 287 (1870), held
unenforceable a lifetime railroad pass accepted by the plaintiffs
in settlement of a personal injury claim:
The agreement between the railroad company and the Mottleys
must necessarily be regarded as having been made subject to
the possibility that, at some future time, Congress might so
exert its whole constitutional power in regulating interstate
commerce as to render that agreement unenforceable or to
impair its value. That the exercise of such power may be
hampered or restricted to any extent by contracts previously
made between individuals or corporations, is inconceivable.
The framers of the Constitution never intended any such state
of things to exist. 219 U.S. at 482, 31 S.Ct. at 270.
Gibbons v. Ogden itself invalidated an exclusive license issued to
Robert Fulton and Robert Livingston by the state of New York, 22
U.S. (9 Wheat.) 1 (1824).
In Norman v. Baltimore & 0. R. Co., 294 U.S. 240, 55 S.Ct.
407, 79 L. Ed. 885 (1935), the Court stated that
Contracts, however express, cannot fetter the constitutional
authority of the Congress. Contracts may create rights of
property, but, when contracts deal with a subject-matter which
lies within the control of the Congress, they have a
congenital infirmity. Parties cannot. remove their
transactions from the reach of dominant constitutional power
by making contracts about them. 294 U.S at 307-308, 55 S.Ct.
at 416.
Although the wisdom of the "congenital infirmity" formula has been
questioned, see Hochman, The Supreme Court and the
Constitutionality of Retroactive Legislation, 73 Harv.L.Rev. 692,
700, n. 44 (1960), it is established constitutional doctrine that
individuals cannot cripple the functions of the legislature, other-
wise properly exercised, by contractual agreement. Home Bldg. &
Loan Assn. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413
(1934) (upholding Minnesota statute temporarily extending re-
demption period on existing mortgages); Atlantic Coast Line R. Co.
v. City of Goldsboro, 232 U.S. 548, 34 S.Ct. 364, 58 L.Ed. 721
(1914) (upholding local safety ordinances against railroad's due
process and eminent domain arguments); Douglas v. Kentucky, 168
U.S. 498, 18 S.Ct. 199, 42 L.Ed. 653 (1897) (sustaining Kentucky's
authority to legislate against the "widespread pestilence of
lotteries," prior licenses and franchises notwithstanding.)
Dobbins v. Los Angeles, 195 U.S. 223, 25 S.Ct. 18, 49 L.Ed.
169 (1904), invalidated a Los Angeles city ordinance which changed
the city's zoning regulations after the plaintiff, in reliance on
an earlier ordinance and a duly issued building permit, had
expended considerable sums in the erection of a gasworks. The
Court was persuaded that "[n]o reasonable explanation for the
arbitrary exercise of power in the case is suggested." 195 U.S. at
239, 25 S.Ct. at 21. But the Court was careful to acknowledge the
state's power to enact similar legislation, if reasonable, and if
necessitated by circumstances, "notwithstanding the grant of the
permit":
* * * In other words, the right to exercise the police power
is a continuing one, and a business lawful to-day may, in the
future, because of the changed situation, the growth of pop-
ulation or other causes, become a menace to the public health
and welfare, required to yield to the public and be re
good. 195 U.S. at 238, 25 S.Ct. at 21.
More recently, the Supreme Court has sustained Congress' power to
terminate, by a change in existing regulations, accrued Social
Security benefits of an alien subsequently deported, Flemming v.
Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L. Ed.2d 1435 (1960) ; its
power to clarify, and thereby impose additional restrictions on,
the uses to which federal mortgage money might be put, F.H.A. v.
Darlington, Inc., 358 U.S. 84, 79 S.Ct. 141 (1958); and its power
to demand renegotiation of wartime contracts with return to the
government of excess profits, Lichter v. United States, 334 U.S.
742, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948). The Second Circuit Court
of Appeals upheld the validity of the Portal-to-Portal Pay Act of
1947, which relieved employers of overtime pay liability, Battaglia
v. General Motors, 169 F.2d 254 (2d Cir.), cert. denied, 335 U.S.
887, 69 S.Ct. 236, 93 L.Ed. 425 (1948). [footnote 10]
Mere allegations, without more, of the arbitrary exercise of
power do not suffice to raise a constitutional question of
substantiality requiring the convention of a three-judge district
court. Brotherhood of Locomotive Firemen & Enginemen v. Certain
Carriers, 118 U.S.App.D.C. 100, 331 F.2d 1020, 1022, cert. denied,
337 U.S. 918, 84 S.Ct. 1181, 12 L.Ed.2d 187 (1964).
Accordingly, the plaintiff's motion for summary judgment, and
in the alternative for the convention of a three-judge court
is hereby denied. The Government's motion to dismiss for failure
to state a claim on which relief can be granted is hereby granted.
FOOTNOTES
1. This bill is variously referred to as the "Omnibus Bill," the
"Safe Streets Act" and by other designations. "Crime Control Act"
has been selected here for simplicity.
2. Pub.L.No.90-618, 82 Stat. 1213 (hereinafter referred to as the
Gun Control Act).
3. 28 U.S.C. section 1361: The district courts shall have original
jurisdiction of any action in the nature of mandamus to compel an
officer or employee of the United States or any agency thereof to
perform a duty owed to the plaintiff.
4. See Learned Hand, The Contribution of an Independent Judiciary
to Civilization (1944) in Dilliard, The Spirit of Liberty 172,
174: "Courts must reconstruct the past solution imaginatively in
its setting and project the purposes which inspired it upon the
concrete occasions which arise for their decision."
5. Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 553 (1914).
6. The Embargo Acts of 1807 and 1808 were never passed upon by the
Supreme Court. Presumably Chief Justice Marshall's dictum is based
upon the general acceptance of District Judge Davis' opinion in
United States v. The William, 28 Fed.Cas. 614 (No. 16,700) (em-
bargo and forfeiture of violating vessel upheld under Commerce
Clause) where he send, among other things: It is well * * *
understood, that the depressed state of American commerce, and
complete experience of the inefficiency of state regulations, to
apply a remedy, were among the great, procuring causes of the
federal constitution.
* * * * *
It was perceived, that, under the power of regulating commerce,
congress would be authorized to abridge it, in favour of the great
principles of humanity and justice. Hence the introduction of a
clause, in the constitution, so framed, as to interdict a
prohibition of the slave trade, until 1808. * * * 28 Fed.Cas. at
620, 621. See also The Federalist, No. 23.
7. See, e. g., Brotherhood of Locomotive Firemen and Enginemen v.
Chicago, R. L. & P. R. Co,, 393 U.S. 129, 143, 89 S.Ct. 323, 21
L.Ed.2d 289 (1968); Griswold v. Connecticut, 381 U.S. 479, 482, 85
S.Ct. 1678, 14 L.Ed.2d 510 (1965).
8. "The doctrine that prevailed in Lochner, [Lochner v. New York,
198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 9371, Coppage [Coppage v.
Kansas, 236 U.S. 1. 35 S.Ct. 240, 59 L.Ed. 441], Adkins [Adkins v.
Children's Hospital, 261 U.S, 525, 43 S.Ct. 394, 67 L.Ed. 785],
Burns [Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412,
68 L.Ed. 813], and like cases-that due process authorizes courts to
hold laws unconstitutional when they believe the legislature has
acted unwisely-has long since been discarded. We have returned to
the original constitutional proposition that courts do not
substitute their social and economic beliefs for the judgment of
legislative bodies, who are elected to pass laws." Black, J., for
the Court in Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028.
1031, 10 L.Ed.2d 93 (1963).
9. The instant case is, of curse, a fortiori to cases such as
Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 81 S.Ct.
1743, 6 L.Ed.2d 1230 (1961) and Farrell v. Joel, 437 F.2d 160 (2d
Cir. Jan. 20, 1971), which almost appear to permit de minimus
violations of due process, since here involved is the regulation of
a private bids, not deprivation of permit rights. But c.f.
Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d
515 (1971).
10. It is interesting to note that no constitutional issue was even
raised by a manufacturer of lawn darts when they were regulated as
"hazardous substance[s]" under the Child Protection and Toy Safety
Act of 1969. R. B. Jarts, Inc. v. Richardson, 438 F.2d 846 (2d
Cir. Jan. 19, 1971). If lawn darts, why not guns?